Rights and Obligations when stopped by a Traffic Officer

Motorists Rights & Responsibilities in Roadblocks plus the status of AARTO and the points-demerit system

Following repeated requests for clarification arising from the receipt of emails with or without attachments containing various pieces of extremely alarmist and factually inaccurate information, Justice Project South Africa (JPSA) wishes to set the record straight so that members of the public are fully appraised of what the situations surrounding the abovementioned topics are.

JPSA also warns that the PDF document entitled “Metrocops arrest rights” purporting to be from The Southern African Vehicle Renting and Leasing Association, “SAVRALA” wherein a number of incorrect statements are made with respect to how motorists should react when presented with a situation where Metro or other Traffic Police or law enforcement officials wish to arrest them may cause a worsened situation to anyone who takes heed of its contents.

This document is not a “one or two pager” with scant and/or inaccurate information. Instead it contains comprehensive information that you absolutely must know, so please be sure to read the entire contents of this advisory. Please also forward it to everyone you know so that the nonsensical emails that are doing the rounds can be counteracted upon with true and factual information.

The implementation of AARTO and the points-demerit system

The Administrative Adjudication of Road Traffic Offences (AARTO) Act was enacted in parliament in 1998 and was proclaimed to be in force, excluding the points-demerit system from July 2008 in the Pretoria (Tshwane Metropolitan Police) and November 2008 in the Johannesburg Metropolitan Police areas.

As of December 2010, AARTO is not in force in any other area or jurisdiction in South Africa and it is planned to be rolled out to other jurisdictions ....

Only once it has been rolled out throughout the entire country will the points-demerit system be proclaimed in the Government Gazette as is required by South African law.

All other implementations throughout South Africa will similarly have to be proclaimed in the Government Gazette as and when they are to take effect.

There is therefore, absolutely no truth in the nonsensical emails that are doing the rounds at present, as they have for a significant amount of time, stating that the points-demerit system is in force “as of midnight last night” etc. despite the fact that they have (probably fraudulently) made use of law firms’ letterheads and other institutions’ names.

AARTO fines range from R100 to R250 mainly for pedestrians and non-motorised vehicles, and R250 to R1500 for motorised vehicles. AARTO offences, i.e. serious road traffic offences like reckless or negligent driving, drink-driving, culpable homicide, etc. are still dealt with by the Criminal Procedure Act and involve criminal charges and consequences for offenders.

With respect to outstanding AARTO fines (infringement notices), please be sure to read the sections that deal with withholding of licence discs and arrest in roadblocks so that you fully understand your rights under AARTO. The “10km/h grace” is and will remain in force with respect to speeding offences since this tolerance is required by the National Prosecuting Authority (NPA) as well as the TCSP guidelines because there is no requirement for all speedometers to be calibrated to strict standards.

Motorists are however advised to drive at or preferably below the speed limit at all times, according to their speedometers and to be acutely aware of all of the speed limit signs that are placed on public roads, freeways etc. By far, the majority of traffic prosecution in South Africa is for speed-related infringements, and it is nonsensical to think that you will not get caught for speeding.

JPSA has proven beyond all reasonable doubt that driving at 10km/h below the speed limit at all times prevents any speeding fines coming its way and encourages members of the public to do the same.

Traffic fines and your address details on eNatIS

Be sensible. Having outstanding traffic fines upon which you have taken no action is both irresponsible and bordering on criminal behaviour. As much as no-one likes receiving traffic fines, it is nonsensical to ignore them and expect that they will miraculously evaporate. Every responsible citizen should therefore act responsibly and lawfully by dealing with their traffic fines as soon as they receive/become aware of them.

In most instances where people claim to have never received their traffic fines, this is due to them having changed address without notifying the relevant registering/licencing authority. We hasten to add that this is not always the reason for non-receipt of fines, but from our observation it is the most common cause.

You are reminded that under the National Road Traffic Act and Regulations, you are obliged to update your address details in the prescribed manner within 21 days of changing address and not doing so is an offence for which you can be fined. Filling in the “change of address notification” on your licence renewal notification is neither the prescribed manner nor any guarantee that your address details will be updated and you should always make sure that you acquire and complete the correct documentation for this at your licencing authority and then make sure that the changes are made.

If you are in any way unsure whether your address details are correct or not, then go and enquire at your local licencing authority since it is your responsibility; not that of the traffic authorities to ensure that your address details are in fact correct.

Consequences of ignoring traffic fines

AARTO infringement notices

Under AARTO, the consequences of ignoring your traffic fines have a severe financial impact on you and strict timelines are prescribed in the Act and Regulations for processes and their associated penalties to be played out. At the very most, this process takes 6 months from the date of infringement to closure with severe consequences in-between.

At least, that is how the process is supposed to work in accordance with this legislation and just because the current participants have not followed these processes in accordance with the Act and Regulations to date does not mean that they will not in future.

Note that all AARTO 03 infringement notices (camera fines) must be served via registered mail, no exceptions. However, if this condition is met and you fail to collect the document within 10 days of posting, it is deemed by law to have been served so don’t think you can get away with not signing for it.

Licence discs and driving licence renewals may be withheld if any one infringement notice in your name has progressed to an enforcement order. Prior to the existence of an enforcement order, this practice is unlawful.

The most poignant facts with respect to AARTO fines are that a summons or warrant of arrest with respect to an infringement notice (fine) may NEVER be issued under any circumstances.

Fines issued under the Criminal Procedure Act (CPA)

“Traditional or old style” traffic fines which are currently issued in the areas outside of the two traffic authorities currently operating under AARTO are dealt with by the CPA. This is the current method used throughout South Africa outside of the JMPD and TMPD’s jurisdiction and will remain so until such time as AARTO is proclaimed in those jurisdictions.

The consequences of not attending to these fines can be significantly more traumatic to motorists who think that they can simply ignore them in that the ultimate result could be the issue of a warrant of arrest against the vehicle owner concerned.

Although traffic authorities regularly and with impunity abuse the provisions of the CPA with respect to service of criminal summonses, there is blame on both sides that needs to be apportioned. One needs to remember that a summons with respect to a camera fine would never be generated in the first place unless the registered owner of the vehicle ignored a notice issued under Section 341 of the CPA when it was generated.

Whilst it is certainly true that the CPA’s lack of requirement for notices to be served in any way other than standard (non-registered) post has often lead to the lack of delivery of these notices, it is equally true that many people, including attorneys and other people who should know better regularly ignore these and say “I will wait for the summons”.

This is an extremely hazardous practice since it is this process that is often abused by traffic authorities and process servers who incorrectly and unlawfully serve these summonses by not delivering them in person and then lying on service returns to the courts.

It must be remembered that the only requirements to become a process server are that one is mobile and semiliterate in being able to read where to deliver such summonses that are to be served. Coupled with this is a preparedness to accept a pittance of a payment from the authorities to enact such service and when we refer to “a pittance” we mean just that. Only a high volume of summonses to be served could cover the fuel required to do so, let alone see the server earning anything to speak of.

It has even become increasingly apparent that summonses issued under Section 54 of the CPA have been posted instead of personally served and despite this being completely unlawful, it does not help the person who has been affected in this manner when they miss their court date.

Magistrates who see their and the courts’ time being wasted by people who fail to appear on the stipulated court date on these summonses do not delve deeply into how or if the summonses were served, they presume that process servers have been honest on their returns and simply apply a contempt of court charge and issue a warrant of arrest for the offender who has failed to appear before them.

Execution of warrants of arrest

Once a warrant of arrest has been served the person in whose name that warrant has been issued, they become fair game for anyone who has the authority to arrest them. Whilst some warrants of arrest are sometimes executed by police who actually go to the home or work address of the offender to arrest them, which is how a warrant should be executed in the first place; more often than not, these warrants go unexecuted for significant periods of time and end up getting executed at roadblocks set up by traffic authorities, where these warrants relate to traffic fines.

Remember that a warrant of arrest under the CPA is a very serious document and is used for a wide variety of criminal offences including rape, murder, robbery… and traffic fines. A policeman executing a warrant of arrest does not care for what crime the warrant was issued; he/she merely cares about the fact that it is a criminal that is to be arrested.

Traffic authorities who set up roadblocks in their jurisdiction either have live feeds or copies from their databases at these roadblocks and warrants are often executed there and then. Knowing your rights can be of enormous benefit to you and being misinformed about them could land you in a lot of very hot water, the consequences of which could have devastating effects.

Please take heed of the following:

A warrant of arrest against you is an authority to arrest you on a criminal charge; it is not an authority to abuse you and/or your rights under the constitution.

You have the right to demand to see a copy of the warrant of arrest be shown to you and they must show it to you immediately however take note of the following:

This does not have to be an original.

You may be detained whilst they go and fetch one, so long as they can demonstrate that the warrant exists. This could even be in the form of an SMS.

You have no right to demand or be shown proof of service of a summons at a roadblock, so don’t even go there.

This does not mean that you have no right to access this information at a later stage, so just bear this in mind.

If you are arrested on the strength of a warrant of arrest, you must be taken to the place of holding stated on the warrant of arrest as soon as possible after your arrest.

The term “as soon as possible” is extremely ambiguous and does not mean within a certain timeframe.

“As soon as possible” in your eyes may be within 10 minutes of being arrested whilst in the eyes of the traffic authority it may be within an hour of them finishing their three-hour roadblock.

It would be for a court to decide if the timeframe was reasonable or not, not you.

If you are taken to any place other than that stipulated on the warrant, this would be a violation in terms of the warrant, but this is a matter that can be taken up at a later stage. Trying to do so at the time would be little short of stupid since you would already be at a disadvantage due to your circumstances.

You must be informed of your rights under the constitution at the time of your arrest.

If you are not, do not make a big song and dance of it at the time, simply note it and in particular, whom it was who failed to do this.

When you are detained at a police station, one of the documents you will be issued and made to sign will be a notification of your rights under the constitution. Read this document carefully and bear its contents in mind. Do not refuse to sign it.

This document covers the SAPS when they detain you but does not cover the person who arrested you if they did not inform you of your rights at the time of your arrest.

If you are refused anything that appears on this document during your detention, take note of it and whom it was who refused you these rights, but do not try and take it up there and then as this will lead to dispute under which you will once again find yourself at a severe disadvantage.

At any time, whether you are being issued a fine or being arrested, you have the right to ask to see the appointment certificate (card) of the peace officer who is fining or arresting you.

Law enforcement officers must now be clearly identifiable : Section 3(A)(7) of National Road Traffic Act‘‘A traffic officer shall at all times when wearing a full or partial traffic officer’s uniform, display his or her official name tag above the right breast pocket of his or her uniform in such a manner that it is completely visible and easily legible.’’ Don’t get into an argument about this; merely politely ask to see their appointment certificate.

Once you ask or demand to see this, the deed is done and if they refuse to show it to you, they have committed an offence.

The offence that they have committed has, in terms of the CPA the effect of making everything that they do unlawful, including issuing you with a fine or summons or arresting you.

Once again, do not try and take this up at the time, merely note it and whom it was who refused to show it to you. Remember that there will always be a way to find out whom it was that refused to show you this.

Once you have been detained, you will have the option to pay an admission of guilt fine or appear before a court. The choice is yours.

Beware of emails and other notifications that say “a new law” etc. and particularly be advised that there is no law in South Africa or anywhere else that states that a female cannot be arrested after certain hours. Anyone, of any sex etc. can be arrested at any time, so long as the arrest is lawful.

Dealing traffic fines correctly

It must always be remembered that South Africa has a Constitution and Bill of Rights which states that “every person has the right to be presumed innocent until proven guilty”. Just remember that refusing to sign for a summons or AARTO infringement notice is an offence and it is really silly to engage in this practice.

Traffic authorities, courts members of the public and some legislation regularly forgets that that this is in fact the case and presumes that when a person has been issued a traffic fine, they are to be assumed to be guilty. Nothing could be further from the truth and simply accepting this widely held belief is tantamount to discarding the constitution in its entirety!

Traffic authorities who hand their “stagnated fines” over to debt collectors, who in turn engage in extortion tactics to try to scare people into paying them are acting in a grossly unethical manner because a traffic fine is not a debt, but an accusation of wrongdoing which has not been proven in court. Both the Criminal Procedure Act and the AARTO Act have processes to be followed and handing fines over to debt collectors is certainly not one of them.

This has not stopped municipalities or debt collectors however and in particular, “VVM Incorporated” has chosen to defame JPSA after they were exposed on Carte Blanche by making accusations of us “encouraging lawlessness”. As at the time of writing of this advisory, VVM continues to defame JPSA, its chairman and every motorist and debtor in this country on their website with their so-called “response to the Carte Blanche JMPD debt story”.

Traffic fines under AARTO

The AARTO Act is particularly guilty of discarding the Constitution in that its very nature presumes guilt of the infringer and lays the burden of proving one’s innocence firmly in your lap. According to a published article on this topic, Alta Swanepoel, one of the constructors of this legislation, has openly and publicly stated that “it is easier for the infringer to prove their innocence than for the State to prove their guilt” and whilst this statement may be true, it only confirms the fact that the Constitution has, without doubt been violated.

The AARTO Act also migrates traffic fines from criminal offences to civil proceedings and once a warrant of execution has been issued, these fines are in fact viewed as a debt. The prescription period for debts to the State is currently 30 years, so your traffic fines will never really disappear. The sheriff will be able to seize your moveable assets to service your fines, however debt collectors will not be allowed to edge in on the action, so VVM and its peers will have to find some other way to intimidate people.

This having been said, the AARTO Act remains in force and is going to be rolled out throughout South Africa unless a court action stops it, and that is highly unlikely given the mass apathy of South Africans and clever leverage of spindoctors who have positioned AARTO as an Act that will save lives on our roads.

The options open to an alleged infringer under AARTO are to:

Pay the fine immediately, taking the 50% discount and incur the associated demerit-points on one’s driving licence immediately (once the points-demerit system comes into play).

Apply to pay in instalments forfeiting the 50% discount and incur the associated demerit-points on one’s driving licence immediately (once the points-demerit system comes into play).

Make representation, (or try to prove one’s innocence) on an AARTO 08 form.

Elect to be tried in court, (or try to prove one’s innocence) on an AARTO 10 form.

In all cases, it will be noted that the alleged infringer is presumed to be guilty on all of these forms in their wording. This does not however mean that you can ignore your infringement notices and hope that they will miraculously vanish, because they will not. You must exercise one of these options if you wish to avoid the other steps and disadvantages of the AARTO Act.

Traffic fines under the CPA

On receiving a Section 341 notice under the CPA, you may:

Admit guilt and pay the fine immediately.

Make representation in the form of a letter to the relevant traffic authority prior to the fine payment expiry date.

Wait for a Section 54 summons to be issued and served on you.

We have already discussed the disadvantages of the latter so we will not rehash this.

On receiving a Section 56 (issued by a traffic officer at the time of the alleged offence) or a Section 54 (issued with respect to camera and other offences where you are not served at the time) summons, you have the following options available to you:

Admit guilt and pay the fine immediately.

Make representation to the public prosecutor.

Appear in court and defend the matter.

Ignore the summons, fail to appear in court and get arrested on a warrant of arrest.

Once again, we have already addressed the latter so we will not rehash it. Although the NPA has in instruction notices to traffic authorities tried to limit the period within which a traffic fine may be migrated to a summons and action taken on it, this remains an open-ended an unenforced prescription period.

Just bear in mind that it is your responsibility to deal with your traffic fines in a responsible manner. If you fail to act responsibly, whether for an AARTO or CPA fine, the consequences that result will affect you and no one else. Griping about being subjected to the consequences of ignoring fines is really a very childish attitude to adopt.

Paying traffic fines

When you wish to pay a traffic fine, there are usually several means by which to affect payment. Just remember always that doing so is an admission of guilt and in the case of AARTO can have other consequences.

Just remember that is nonsensical to pay a camera fine if there is no photograph to back it up!

When stopped in a roadblock, traffic authorities regularly try to create the impression that you have no option but to settle your fines there and then under threat of arrest. The fact is that they cannot under any circumstances arrest or detain you (same thing) for an outstanding traffic fine for which there is no warrant of arrest.

They may serve you with a summons to appear in court, as long as the court date on that summons is at least 14 days in the future (Sundays and public holidays excluded) but they may not force you to pay there and then.

Similarly, they may not serve you with a summons with a court date any sooner than 14 days into the future.

Seminars, toolkits and camera and speeding fines

There is an awful lot of misinformation available on the internet with respect to the unlawfulness of traffic fines in general and in particular, camera fines. This is because a number of individuals and companies alike make a significant amount of money from instilling fear and lying to members of the public.

In particular, alarmist emails and “Traffic Fine Toolkits” spread lies and very dangerous misinformation with respect to both AARTO and the legality of fines in order to drum up customers.

Despite repeated advisories and published factual information from JPSA, members of the public continue to believe the hogwash published by these people and continue to spend inordinate amounts of money on their wares like CD Toolkits, eBooks and even exorbitantly priced seminars in their lust to “get away with” their traffic fines on the one end of the scale or comply with AARTO on the other.

Misinformation is often published by these predators to entice people to buy their wares and the net result is a public that is misinformed and non-compliant with the law. The very same members of the public who buy into this nonsense then routinely say “I am a law-abiding citizen” when referring to how they have been “illegally trapped”, etc. This is bizarre to say the least, but it does not alter the fact that this is what is happening.

When it comes to the use of speed measuring devices and cameras in law enforcement exercises, the TCSP guidelines and SANS 1795 (SABS) specifications always apply however an enormous amount of misinterpretation and outright nonsense is then applied to these guidelines and specifications by those who apply and/or misinterpret them.

Some of the provisions that are applicable under the TCSP guidelines are as follows:

All equipment used must meet SANS 1795 standards, must be calibrated regularly and must be operated by a traffic officer qualified in the use of that equipment.

No speed trap may be set up within 300m of the commencement of a speed limit zone either way. This does not mean that it may not be set up within 300m of a speed limit sign that is the same as that applicable in the area in which the exercise is being conducted.

Where cameras are used, there must be an accompanying camera warning sign unless the DPP has specifically stated that this is not necessary at that site. There is no requirement that such a camera warning sign must be in place if you are stopped immediately and fined.

All camera evidence must have the data embedded on it in human readable format, easily viewable by a person with normal eyesight at the time that it is captured. There is no requirement in the TCSP guidelines for cross hairs to appear on this photograph but they should be there to show that the measurement was taken in the general vicinity of the number plate or headlight. Take note however that some equipment takes two photographs at the same time and not all equipment used is laser based for which this would be a requirement.

All portable speed measuring equipment (SME) must be mounted on a firm and stable surface and this means that it must be on a tripod in most instances. The tripod itself also has to be on a firm and stable surface since there is no use in mounting the SME on a tripod and then putting that tripod on loose stones that allow it to wobble about.

There is absolutely no requirement that any speed trap must be visible and traffic officers operating this equipment may hide if they wish or are instructed to do so. Similarly, whilst it is certainly unethical and unfair for these to be set up on anything other than flat road surfaces, there is nothing that prohibits these from being set up on a downhill or uphill. In fact most speed traps are set up on downhill slopes because the speed limit is the speed limit, uphill, downhill or on a flat.

The alleged infringer is entitled to be given (not just see) a copy photograph or image of the alleged offence and the traffic authority concerned must do so free of charge.

The TCSP guidelines are comprehensive and fairly clear, however as mentioned previously, they are often misinterpreted. JPSA has published these guidelines on the internet and you can download them at the JPSA’s AARTO website, however we warn that misinterpreting them can have very serious consequences and we urge you to rather seek professional advice from us.

Similarly, should you wish to become fully informed about your rights and responsibilities with respect to traffic law, we suggest that you consider attending one of our workshops or seminars that are run from time to time. Details of these are also available on any of our websites.

Making representation or defending yourself in court

Anyone who thinks that they are capable of successfully making representation to traffic authorities or public prosecutors or indeed defending themselves in court is either an attorney or a fool. Yes, there may be times when one’s justification for committing an infringement or offence is so obvious that it would not be deemed necessary to seek professional help but in the vast majority of cases, this is not the case.

Just as one would not consider conducting brain surgery on oneself, even if you were a brain surgeon, similarly, it is advisable that you seek professional help in either submitting a representation or defending a matter in court. By “professional help” in the case of traffic offences, we mean a traffic expert or attorney who specialises in traffic offences and/or criminal law.

Trying to handle things yourself can have undesired consequences and let’s face it, there are very few traffic experts in this country and fewer yet attorneys who specialise in traffic offences. There is simply not enough money in it and that is why this situation exists.

JPSA offers specialised traffic offence related assistance and consultation/expert evidence and witnesses – details of which can be found on its AARTO website.

Dealing with unlawful arrest

Anyone who is subjected to being unlawfully arrested has recourse available to them by means of civil litigation.

However, despite this fact, very few people ever pursue this route due to the following reasons:

Not knowing how to go about lodging a claim for or indeed that one can lodge a civil claim for unlawful arrest.

Thinking that this will be too expensive a process or indeed a waste of time and money.

Waiting too long before instituting an unlawful arrest claim. All unlawful arrest claims must be instituted within six months of the commission of the act unless there are extenuating circumstances that surround them and condonation is applied for and granted by a court.

The belied that lodging a complaint with the ICD or the Internal Affairs Department of the relevant traffic authority will deal with the situation.

Fear of retaliation or intimidation by the person or authority concerned in effecting that unlawful arrest.

The fact is that if more people were to proceed with unlawful arrest claims, fewer incidences of unlawful arrest would ultimately be the result. This is especially true in light of the judgement passed in the Pretoria High Court in 2010 that all officers against whose employers unlawful arrest claims are successfully lodged must now pay their own legal expenses.

The costs associated with taking such action are actually surprisingly low, given that there are a number of attorneys and law firms who are prepared to act on a contingency basis in these cases, meaning that they will take a share of the settlement if the claim is successful and nothing if it is not.

JPSA refers victims of unlawful arrest to such firms and we encourage every member of the public who is affected by an incident of unlawful arrest to take advantage of this and approach us for assistance.

By far the most important factor in ensuring success for unlawful arrest claims is the existence of details surrounding the incident. It is therefore extremely important for anyone to be as observant and accurate in establishing the details of whom it was that acted unlawfully against them, as well as the date, time and place/s that this occurred

Trying to institute an unlawful arrest claim against persons and details unknown will not succeed and courts are not interested in innuendo and conjecture.

Remaining safe on our roads

Most obviously, the best way to remain safe and avoid being prosecuted on our roads is to abide by all traffic laws and drive with extreme care and vigilance. Getting smart and believing that you can beat the odds in either avoiding or getting off your traffic fines and/or being involved in a serious collision is foolhardy to say the least. No-one can beat the odds forever and there are no exceptions to this rule.

Driving within the speed limit at all times is very important, but is just one of the areas that all motorists should concentrate on. Refraining from the use of alcohol and/or drugs prior to or during driving is an absolute must and our message on this is simply that zero alcohol is the golden rule when driving. Not one or two drinks etc. – no drinks.

But aside from speed and alcohol or drugs, there are several hundred other “rules of the road” and safe driving practices that must be adhered to and you need to be aware of these and abide by them at all times. Remember always that as much as you make efforts to remain a “law-abiding citizen”, you are not the only driver on the road and there are an enormous amount of people on the road who do not and never will abide by the law.

It is not your responsibility to play policeman and chase after or reprimand them for what they do but it is your responsibility to avoid them and where possible report them so that something may be done about them. JPSA will be providing facilities to do so through its AARTO website.

It is also incumbent on every motorist to know how to behave on the roads and also to be up to speed with what the real traffic laws are. To this end, JPSA will be conducting regular workshops and seminars for the public to bring themselves up to speed with these; details of which will be available on the JPSA’s AARTO website

Most current documentation

Unlike other publications that do the rounds via email, JPSA does to place indefinite validity periods on its advisories. This document will expire on 1 April 2011 and will no longer be readable at that time. The most current version of this and other documentation will always be available at JPSA’s official website at www.jp-sa.org and you are encouraged to check regularly for the latest version.

A word of appreciation to Justice Project South Africa for the information provided